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Local Government and Public Involvement in Health Bill

moved Amendment No. 210A: 210A: Clause 236, page 168, line 6, leave out ““follows”” and insert ““mentioned in subsections (2) to (4) below”” The noble Baroness said: My Lords, I hope the House will forgive me if I take a few moments to speak to the amendments in this group. The government amendments in this group are connected; for simplicity, I shall not deal with them strictly in numerical order, but rather in a way that best explains what we are aiming to achieve with them. Amendment No. 211 relates to the suggested reinstatement of ““involve”” in the duty on NHS bodies to consult patients and the public. In Committee, I committed to giving the issue further consideration over the Recess, following opposition amendments. As noble Lords are aware, the issue of what constitutes and differentiates consultation and involvement under Section 242 of the National Health Service Act is a complex one that has been subject to recent judicial review decisions. In last year’s case of North East Derbyshire, Mr Justice Collins was unable to find any differences of meaning between references to ““involve”” and ““consult””. It was this judgment that initially led the Government to exclude ““involve”” from the duty on NHS bodies to make arrangements to consult the users of health services. However, noble Lords may know that, over the summer, the Court of Appeal in its judgment on Fudge, held that in that case ““involvement”” could be seen as something less than ““consultation””. That is certainly not the Government’s intention. The amendment therefore restores the reference to ““involvement”” and results in NHS bodies being subject to a duty to make arrangements to involve the users of health services. It is our intention that, depending on the circumstances, ““involvement”” can include actions such as passing on information, consultation and active participation in the planning and provision of services, and the wording of the amendment reflects that. Amendments Nos. 218 and 219 make consequential amendments to Clause 236 arising from Amendment No. 211. Amendments Nos. 212 to 217 seek to deal with the removal of the word ““significance”” in Clause 236 and the lowering of the threshold for making arrangements for involvement, which in Committee I also agreed to take away and consider. We discussed this at some leisure in Committee, and we considered it to be important. As stated in Committee, Section 242 of the National Health Service Act 2006 is a wide-ranging duty, which currently provides no sense of scale to enable NHS bodies to apply the duty meaningfully. In inserting a threshold, the intention was to ensure that arrangements for consultation by English NHS bodies in England under Section 242 applied where a decision or proposal would have a substantial impact on the range of services and the manner of their delivery. However, I understand the concerns, which noble Lords raised effectively in Committee. That is why we are proposing to amend the Bill by changing the threshold from proposals and decisions having a ““substantial impact”” to proposals and decisions having an ““impact”” and we have removed all references to ““significant”” in Clause 236. This means that the duty on English NHS bodies to make arrangements for involvement will apply where proposals or decisions have an impact on the range of services and the manner of their delivery. I now turn to some important new elements to the involvement and consultation regime provided for in Section 242 of the National Health Service Act 2006. I am particularly grateful to the noble Earl, Lord Howe, for identifying two key areas by which we can strengthen the involvement duties. I am also grateful to the noble Baroness, Lady Neuberger, for her contribution to our discussions on this issue. I believe that these two areas strengthen the way by which patients and the public can have direct influence over their health services. Although the duty to involve in the amended Section 242 applies to strategic health authorities, this section applies only in respect of services for which a strategic health authority is responsible. Strategic health authorities are responsible only for the national commissioning of a limited number of specialised services. However, there are times when, although they have no direct responsibility for the provision of services, strategic health authorities, as we all know, take the lead in formulating strategic frameworks for a whole area within which more localised services are then developed and implemented. It is in cases such as these, when strategic health authorities are developing these kinds of strategic frameworks, that we think it right that they involve patients and the public. Therefore, Amendment No. 219ZA places a duty on the Secretary of State to make regulations imposing a duty on strategic health authorities to make arrangements to involve users of health services in certain matters. The amendment also provides that in complying with this duty, SHAs must have regard to statutory guidance. I am sure that noble Lords will agree that the level of detail needed to clarify what activities are needed and when they apply is more appropriately set out in guidance. Amendment No. 219ZA also provides for the Secretary of State to make regulations which provide for SHAs to make directions to primary care trusts to ensure that there is no unnecessary duplication of involvement activity. If we were not to do that, I am sure that noble Lords could imagine that all sorts of duplication could come into play. The regulations provide for the directions to specify that a strategic health authority may take over responsibility for involvement activity, thus freeing the PCT from its existing obligation under Section 242. The regulations also enable directions to make provision about circumstances where involvement activity by a PCT might have already commenced prior to the making of directions. The Government have listened carefully to the observations of the noble Earl, Lord Howe, in his meetings with my noble friend Lady Andrews on government Amendment 219ZA. However, I am content that our amendment provides for his objectives under Amendment No. 219ZAA and I hope that he will agree—although he may wish to discuss the matter further. The term ““form”” allows for the guidance to set out the fullest possible variety of methods or activities of involvement that might be necessary in any given circumstance and certainly does not limit SHAs to involvement in any lesser way than might be necessary or desirable. Government Amendment No. 219ZA provides also that SHAs must have regard to when and how often the involvement duty is to be fulfilled; and the guidance can also make clear when certain circumstances apply that the duty should be fulfilled. I resist Amendment No. 219ZAA of the noble Earl, Lord Howe, and I would be interested to hear how much he wishes to push it. I understand the point of Amendment No. 219ZAB but I am going to resist it for very good reasons. We are keen for the involvement and consultation requirements to come into force as soon as possible. I am sure that all noble Lords will agree that patients and the public should be involved and consulted at every level of the NHS, and the requirement on SHAs that the government amendment imposes is a particularly important one. We do not want now to hold that duty up by requiring a lengthy consultation process on the regulations. That is not because we do not want stakeholders to inform the detail of the regulations. Indeed, we are committed to developing regulations with the NHS and organisations representing the interests and concerns of patients. We have been assisted greatly by officers of HealthLink in working through the detail of these amendments and I know that it is committed to helping the development of regulations and statutory guidance. We are committed to two crucial issues: first, that the guidance and the regulations are developed in partnership with stakeholders and, secondly, that the duty is put in place as soon as possible. With those comments I commend the amendments to the House and I hope that the noble Earl will consider not moving his amendments.